Theories of Statutory Interpretation1. Intentionalism: Judges should ask if the exact question were before the Congress that enacted the Act, how would they act on the ?.2. Purposivism: Question not as important, identify the purpose of the Act. (Stevens, Breyer)3. Textualism: Plain language key (Scalia/Easterbrook)List of Semantic Canons -> Should clarify an ambiguity / looks at grammar, sentence structure 1. Inclusion of something implies the exclusion of something else.2. Of the same kind/Expressio Unius (i.e. list with a catch-all phrase -> A,B,C,D or any other -> the preceding items on the list (ABCD all narrow the term any other -> i.e. if all items are types of knives than any other/dangerous weapon would NOT include a gun)3. Words are known/defined by their associates/Noscitur a Sociis -> i.e. word bank is a statute could mean "river bank" or "bank as in a financial institution", use the words around the term to determine the meaning the word -> always used to narrow the term4. Presumption of consistent usage -> when Congress uses a term throughout a statute, it has the same meaning in each instance -> may even be throughout various statutes if they address the same term in the same manner.5. In para materia: Same word, same Meaning in Two different statutes; If two statutes use similar language, interpret side by side6. Avoid redundant/superfluous language: Interpret the meaning of word in a way so other parts of the statute arent rendered redundant7. Arguments against applying the canon: Can be overcome if the context requires otherwise OR if the statutory language is clear, the canon is not applicable in the situation List of Substantive Canons -> Policy driven, if reading it in a certain way will go against policy, it should be read to avoid that unless there is a clear statement from Congress; apply based on a value judgment [UNLESS THERE IS A CLEAR STATEMENT]0. Rule of Lenity: instructs courts to resolve ambiguity in criminal or penal statutes in favor of the D, & against the government.0. Canon/Presumption of constitutional avoidance -> Courts should avoid serious constitutional questions if they can when interpreting a statute, assumes Congress doesnt needlessly or ambiguously challenge the Constitution -> constitutional issue is left undecided in the case 0. Canon/Presumption of federalism values -> protecting state's autonomy/preserving state's rights/avoid infringing on state's autonomy 0. Canon of interpreting statutes in derogation of the common law/Presumption against altering the common law -> Congress is allowed to enact statutes to change the common law, but must be strictly construed how much the common law is abrogatedLanguage, Purpose and Legislate Supremacy1. Presumption that legislators choose their words to express their intended meaning.1. Deviation/clarification by the court opens the door for exceptions not listed in the statuteIdentification of Legislative Purpose: The statutes title, the "mischief"/problem the initiated Congress in enacting the statute, Legislative History, Societal values -> religion-> intentionalismMeaning of Words: Definition in the statute; Audience (who is the statute directed at) trade/commerce; special meanings of words; Default: ordinary meaning -> structure/context of the statute; Dictionaries; Ordinary or Specialized (The ordinary meaning expresses the legislative purpose; unless otherwise defined, words interpreted as taking their ordinary, contemporary meaning)Forms of Legislative History: Committee Reports, Statements of Individual Legislatures (Floor statements in general, Sponsors statements, Statements made during hearings), Successive Versions of Statute, Subsequent Legislative Action (or Inaction) -> suggest Legislative history lacks legitimacy/has not gone through constitutionally mandatory process vs. Legislative history may be invaluable in revealing the setting of the enactment and the assumptions its authors entertained about how their words would be understood.REGULATION1. Congress authorizes/delegates authority to an agency (executive branch) through legislation to create regulations specific to the authority of the agency [Congress -> Legislation -> Agency (delegation) -> Regulation] 0. Look at -> did the agency promulgate the regulation properly? Was the regulation true to what Congress wanted?1. Benefits: Technical expertise that Congress does not have, Agency reacts faster & more easily, Democratic interaction through solicitation of "public comment", Less partisanship (also why judges might defer)1. Administrative Procedure Act (APA) (1) Tells agencies how to promulgate regulation & (2) Legislation for all agencies regardless of subject matter which differs from the legislation that actually delegated the authority to the agency (organic statute)1. Rulemaking (like legislation) vs. adjudication (like a court case)1. Informal vs. formal (Administrative Law Judge, hearings (similar to a trial)4. Informal Rulemaking -> notice & comment rule making: (1) Agency has the delegated authority (2) Solicits comments (3) Proposed regulation with more comments offered on the proposal (4) Final regulation (*) Much faster than formal rulemaking, most agencies use this for that reason 1. Reasoned decision making that should be supported by the record PRE-CHEVRON: Identify statute, statutory provision, agency, mischief, what is at issue? Why? Identify possible ambiguities? Change in policy?CHEVRON TWO-STEP TEST0. Step 0: Does Chevron apply? [Did agency have authority to act with force of law and do so (n&c/adjudication)=Chevron if not Skidmore] Did Congress intend to delegate this issue to the agency? Rejects the assumption that if Congress is silent about intent, they implicitly intend to delegate to the agency. 0. If there is a canon, it must be applied 1st [IF theres no canon, then court would defer to agency (Chevron test); however, canon applies first independently to see if the there is another constitutionally appropriate outcome, then apply Chevron to the outcome[Debartolo]

0. If Yes, then apply Chevron test (1st)0. If No, apply Skidmore respect test (2nd) 0. Step 1: Is the Congressional intent clear or is the relevant statutory text/language/phrase ambiguous/vague/broad/subject to multiple interpretations? Is the statute flexible? Explicit or implicit?1. In determining Congressional intent, look at the plain meaning of the Act/phrase (ambiguous, term of art?), the legislative history (Congressmen (however, isolated view of Congressman may not be reflective of the Congressional intent as a whole, especially if conflicting statements are made), floor statements, committee reports),&canons (A textualist judge will be more likely to use the canons to find a clear meaning). Discuss 1. Ex. If the congressional intent were clear & unambiguous, the analysis would stop here because both the courts & the agency is required to follow congressional intent. However, in this case, the congressional intent is arguably ambiguous & the judge should move on to step two of the Chevron analysis. 1. If NO, then agency must follow the statute & the congressional intent; If explicit, explicit delegation of power to interpret with the force of law, the agency's interpretation is to be given "controlling weight" unless it is arbitrary & capricious. If implicit, reasonable? 1. If YES, go to step 2A0. Step 2(A): How ambiguous is the statute/how flexible? Implicit delegation by Congress to fill in the gap? Intentional? (Ambiguity becomes source of implicit delegation & allows for agency interpretation) Even if the policy is perfect, does that give the agency the justification for their action based on the statute? Justification by the agency for NOT adopting a rule, is it adequate?1. Is it within the zone of ambiguity? Zone of ambiguity - would the judge accept another interpretation if within the range -> judges should not second guess the agencys decision & substitute their own value judgments or decide a different option was better, ONLY if it was reasonable: agency has been given authority by Congress to regulate, not the court; true Chevron deference means that a different outcome still within the range would be upheld & deferred to the agency. Agency has reason to choose within zone of ambiguity but must give reasoning for its decision (like State Farm)&its interpretation must be valid ask is it inside the range; if it is, is it well reasoned?)0. Using canons of construction to determine0. If YES, go to step 2B 1. Step 2(B) Is the agencies interpretation reasonable or permissible (in light of the ambiguity)?1. Grounds for arbitrary and capricious/inadequate explanation: a court may strike down an agency action even if they complied with all procedural requirements and acted within scope of statutory discretion if the court decides the agencys decision is so unreasonable as to be arbitrary or capricious clear error of judgment; ct cannot substitute its judgment for the agencys [Overton Park/State Farm] Hard look review[State Farm/reaffirms Overton Park standard]: Agency relied on factions Congress has not intended it to consider; failed to consider an important aspect of the problem; Offered explanation for decision that runs contrary to the evidence; Explanation is so implausible that it could not be ascribed to a difference in view, or the product 1. IF NO, remand to the agency to come up with a different solution/reasoning consistent with the opinion of the court 1. If YES, Give deference & uphold the agency interpretation if its permissible/reasonable 1. Skidmore respect: Ask: Is an agency interpretation, such as an opinion letter [as seen Mead] which do not have the force of law, entitled to respect to the extent that it has the power to persuade? Allows for "respect" of agency interpretation in light of the factors (a bit short of deference). Give deference when the agency interpretation is persuasive, consistency (must be convinced by the interpretation) (limited law). Is the interpretation designed to apply to the case at hand only or widely/precedential value?1. Factors: 2. Thoroughness evident in its consideration2. The validity of its reasoning 2. Its consistency with earlier and later pronouncements1. Did the agency act with force of law? Did they have the authority to do n&c, but choose something else?POSSIBLE OUTCOMES OF CHEVRON TEST1. Statute is clear & unambiguous (Step 1) 1. Whatever the outer limits of ambiguity, the agency interpretation lies within them (Step 2A)1. Whatever the outer limits of ambiguity, the agency interpretation lies beyond them (2A) & the agency regulation is invalid 1. Has the agency justified its interpretation? (Step 2B) (Echo of hard look review) US v. Florida East Coast Railway (N&C Rulemaking v. Formal Rulemaking) ICA delegated to ICC the authority to act & impose an "incentive" to be able to buy more freight cars. ICC could use N&C: (1) Organic statute does not clearly require formal rule making, (2) APA doesnt require formal rulemaking. This main effect of this case was to limit the applicability of the formal rulemaking category to clearly specified cases. SEC v. Chenery (Rulemaking Thru Adjudication) The SEC was adjudicating the Chenery's attempts to purchase stocks in a utilities company that was being re-distributed from them. They made a rule against this practice through their initial adjudication If the organic statute & APA provide, an agency may announce rules through an adjudication, also may make the same decision, if they used reasoned descision making Hoctor v. US Dept of Agriculture (Interpretive rule [no N&C required] or Legislative rule) US Dept of Agri. Issued an interpretive rule clarify the meaning of "structural strength" from the organic staute. Agency said "structural strength" meant 8 ft cage The agency interpretation was more like a legislative rule - it announced a new standard rather than clarifying what was already there. Arbitrary & capricious. Interpretive Rule is binding, cannot state new rule, can only clarify old rule & something that flows naturally from the old rule [no N&C required] Vermont Yankee v. NRDC (How much say should the judiciary have in the choice of agency procedures?) Atomic Energy Commission (acting under Atomic Energy Act) issued a license to a business to build a nuclear plant Then the agency went through N&C to solidify the rule. The court in general should defer to agency choice of procedure unless the organic statute says otherwise or APA requires otherwise. Procedurally, the agency is free to choose their method of rule-making, so long as the agency abides the procedure as required by the statute & APA rules. State Farm (Hard Look Review of Factual Determinations/ Is what the agency did arbitrary & capricious?) NHTSA promulgated regulation (mandating passive restraints & airbags) then rescinded it. NHTSA offered no reasoning for rescinding airbags. Hard Look Review shows that the agency's decision was arbitrary & capricious-they did not satisfy the minimal reasoning & evaluation regarding the law considering the law they were trying to implement. Hard Look Review will be applied when a challenge is made regarding what an agency did (especially if the agency promulgated rules & then retracted them)However, agency inaction judged generally with less scrutiny Skidmore (First Court effort to assess how agency interpretation of statutes should be applied-Comes back later in Chevron step zero)Group of workers sued for overtime under FLSA. Agency filed amicus brief saying that waiting time spent sleeping was not working time so no overtime. Skidmore Factors for Respect: Thoroughness evident in its consideration, the validity of its reasoning, Its consistency with earlier & later pronouncements. Allows for "respect" of agency interpretation in light of the factors (a bit short of deference) Chevron (The Modern Approach for the Weight Applied to Agency Statutory Interpretation) EPA established non-compliance sites & levels for monitoring modified or new stationary sources "source" was changed to the entire plant. Environmental agency challenged the interpretation. New Standard Announced for Evaluating Agency Statutory Interpretations: Chevron 2 Step: Is the statute clear? (Abide clear meaning) If not-was the agency interpretation within the reasonable range of interpretation? Deference if statute silent/ambiguous, If clear, should apply "an agency's interpretation of a statute is not entitled to deference when it goes beyond the meaning that the statute can bear" MCI v. ATT (Chevron & Textualism - Is the statute clear? Would a Textualist ever think its unclear?) FCC required all common carriers to file tariffs. FCC was allowed to "modify" tariff requirement - they interpreted this to mean they could eliminate it for certain groups Textualist Court rejected this interpretation. Asserted that Chevron deference could not apply b/c the statute was clear: modify completely eliminate Shows that in a textualist court, Chevron is less likely to be applied-statute will rarely be interpreted as ambiguous Babbitt v. Sweet Home (Chevron & Textualism - Is the statute clear?) Sec of Interior further defined statutory language: "harm" - to include significant modification of an animals habitat. Challenged. The Court reasons that since it is accepted that Congress did not provide an unambigouous interpretation of the statute, & this Court's reasoning that the Sec. of Interior's interpretation is reasonable lead the court to the decision that the agency's choice is to be abided. Ex. of Textualist Court finding that a statute was ambiguous & did allow for interpretation Chevron & Substantive Canons: DeBartolo [Constitutional Avoidance - PUNTED], Rust v. Sullivan [Constitutional Avoidance - Hit it Right OnAbortion Statute], SWANCC [Federalism Canon - Navigable - PUNTED..Waters Statute US v. Mead (Limits on Chevron - Chevron Step Zero) Customs had two categories of tariffs: cat 1 fee & cat 2 duty-free. Customs announced by letter to Mead the change that they would pay. Mead challenged. Interpretations offered without procedure or "force of law" will not be afforded Chevron deference. In these cases, Skidmore factors & respect should apply (any time an agency offers an interpretation thats not in N&C or adjudication) Chevron Step Zero Applies to policy statements, agency manuals & enforcement guidelines. They are beyond the Chevron pale FDA v. Brown & Williamson (Structure, Context Agency asserted jurisdiction over tobacco products, concluding that nicotine is a "drug" within the meaning of the FDCA Context, Structure & History revealed that Congress did not intend to authorize the agency power to assert authority over tobacco products Even though the statute upon ordinary/plain language reading appeared clear - other relevant context showed it was not the intent.